February 23, 2011

While interviews suggest that Internet vetting of jurors is catching on in courtrooms across the nation, lawyers are skittish about discussing the practice, in part because court rules on the subject are murky or nonexistent in most jurisdictions. Ten law firms and five jury consultants declined requests from Reuters Legal to observe them building juror profiles, many saying they weren't sure judges would approve. "Lawyers don't know the rules yet," said John Nadolenco, a partner at Mayer Brown in Los Angeles. "It's like the Wild West."

Is this wrong? An invasion of the juror's privacy? It's so easy to do that it seems to me that making a rule against it is unfair to honest lawyers. (Cue the typical jokes.) I'd say get used to it. This is the world we live in. The information that's out there is out there. Deal with it.

The actual alarm here is that "now everybody can do it". Jury selection has always been an intense vetting of folks on a list of called Jurors done by local in the know social gossip networkers. The need to add a local counsel onto the team has primarily been for this reason. Communities know one another, but to outsiders folks are a mystery. Using Google to understand community member's prejudices is not a new trick, but is the same old trick.

I'd say get used to it. This is the world we live in. The information that's out there is out there. Deal with it.

On the other hand, the juror must not use Google. I was on a criminal jury last year and the Judge emphasized that we were not to look up the crime, the individuals, the lawyers, or herself. (Nor were we supposed to talk about the case with friends, family, or each other.)

Most of the voir dire questions in that trial concerned any history with the police.

Oddly enough, after the trial I tried to look up the crime but it was too obscure to make the papers.

Exactly right, traditionalguy: Same business, new technology for achieving it. That the information now becomes more easily available due to the actions of the would-be jurors is immaterial to law, but might be something those potential jurors (i.e., everybody) might want to keep in mind.

In general, I can see it as legal. But at what point can lawyers find a way that prevents me as an "honest citizen" from ever participating in the juror process? And much worse, making sure a few citizens are the only ones that do get to participate?

Remember that a voir dire is a selection done by using a limited number of strikes only, plus a few strikes for cause available when a juror is related to someone in the trial and/or says he does not intend to be fair in such a case. As an example, 24 jury panel members are sifted through and each side must strike 6 to get down to 12. We don't want the remaining jurors to know who struck who because they may not understand that although we liked them we had to strike our required number. We are always looking for a natural leader type in the group and then suck up to him/her big time. We never embarrass or demean any panel member with the rest looking on.

As many have noted, a rule prohibiting an attorney from taking into account information in the public domain about prospective jurors is foolish and unenforceable. One additional reason: traditional jury consultants are very expensive to use (I've done it a few times), while the internet is free -- and, for that reason, tends to reduce advantages held by the more moneyed side.

As efforts continue to extract every advantage from the jury selection system, the larger reality is that the jury is a vanishing institution in most civil cases other than torts. Commercial agreements routinely contain either jury waiver clauses in the event of a dispute, or arbitration clauses which effectively block resort to the judicial system. That is a resounding vote of no confidence by the business community in the jury system, which many see as little more than a crap-shoot. I think that view grossly underestimates both the common sense of most juries and the arbitrariness that is coming to characterize alternatives such as arbitration. But, from what I've seen over the years, that negative view of the jury system is clearly the view of most business folks.

Foreign entities are even more horrified at the idea of a jury, and today often resist even agreeing to arbitration in the US. Britain has abadoned juries in civil cases, and most other places never had them to begin with. Other than in criminal and tort cases, it's unfortunately an institution on the wane.

I'd say get used to it. This is the world we live in. The information that's out there is out there. Deal with it.

Yes. The change isn't going to stop for you. The change isn't going to slow down, or even maintain its pace. The change is going to accelerate. We're living in a science fiction future. Trying to force it to look and act like a mid-20th century world is a lost cause.

I hate voir dire. I did it most recently two-and-a-half months ago. 100 people interrupted from their lives and compelled to sit in a courtroom watching lawyers ask the same tedious questions in succession to one person after another for hours on end for a trial that, in this case, was expected to last less than 2 days...what the fuck?

I feel guilty complaining--I love my country and I respect our system--but there has got to be a better way to do it. A better way to do the whole thing, in fact.

I seem to get a summons every 2-3 years, from superior and federal court. I've served on 3 juries. Maybe if I could go a few years without having to brush up against the justice system I would be less hateful about it.

I don't think it is an invasion of the juror's privacy because, as you say, everything on the internet is public. If you don't want to have your information out there...don't facebook, tweet or comment on blogs.

However, given that there is an unlimited potential for mischief the Attorneys should be wary of believing everything they see on the internet.

Even on this blog, we have had many instances of posters pretending to be other posters and making vile (and sometimes really funny) posts.

Also, if you never want to be selected on a jury, all you have to do is be totally outrageous on the net.

Using the net to screen for jurors could be a tool that may be useful, but the potential for abuse is much larger.

In addition, there is no substitute for looking someone in the eyes and reading body language when you are trying to ask questions and 'size them up'.

The Runaway Jury -- a 2003 adaptation of John Gresham's 1996 novel, and as I recall, its depiction of the means employed by high-powered "jury consultants" didn't mention Google (or search engines more generally). It was, otherwise, a quite frightening, and not too inaccurate, caricature of modern practice in some big-stakes civil litigation. (I recommend both the book and the movie, and I'm sure you can find them at Amazon.com via Prof. Althouse's dandy search link in her sidebar.)

I started picking juries in 1980, and even then some litigants and lawyers were alert to opportunities to mine -- legally, in my first-hand experience anyway -- public data about venire members. What's changed since then is not just the volume of the information that's available online, but the cost and expertise needed to access it. And I'm talking opposite-directed steep slopes, with vastly more data being available vastly cheaper to almost anyone with even modest search-engine skillz. This is a perfect task to assign to a young paralegal, for example, who can probably be tapping into the courthouse's WiFi for the 'net access he/she's using to find out about Mr. Brown, who's going to be asked the question after next.

@chuck b: I'm sorry to hear how badly abused you were during voir dire. The experience you relate is not universal by any means. In Houston and the other Texas cities in which I practice, I don't know of any trial judge -- even in the state courts, which continue to permit a whole lot of lawyer discretion and participation during voir dire -- who'd allow the scene you described.

It's just not necessary: The legitimate information can be acquired in less oppressive and more effective ways. Shame on the drudges who put you through that.

Yikes! It's John "Grisham," not "Gresham," and I should have known that. My apologies to him; I'm sure the Amazon website's search engine will point anyone to the right book and movie anyway even if they search using "Gresham."

Hang the bastard! Send them all to jail and throw away the key. Their wives and mothers and any kids they have too!!! If they weren't guilty, they wouldn't be in the courtroom, damn it.

Er, Professor, could you have somebody from your faculty who specializes in teaching how to do voir dire check over the above and advise whether I need to add anything to get struck from any and all juries? Thanks.

So far I haven't had to worry about it. As a hard of hearing computer professional who worked for an insurance company, two hospitals, a bank, two stock brokerage firms and an accounting firm, they never let me get near to serving on a jury.